Waterfront

I wish I could feel as good about City Hall – more specifically, the elected and appointed officials who set policy and directly impact the lives of Buffalo’ residents – as I do about the image of that grand structure from a distance.

Here are some recent photos I’ve taken while strolling the Erie Basin Marina. Hope you enjoy them.

I’ve been trying to write a post about Buffalo’s Common Council for days now. But focusing on the ways such an uninspiring legislative body functions is, well, depressing. To boot, summer weather has finally arrived in Western New York.

So, I’m going to embrace the suggestion from a trusted friend and sometime “guardian angel.” Rather than pen another gloomy post involving Council President Darius Pridgen, South District Council Member Chris Scanlon, or Delaware District’s Joel Feroleto, etc., I will share some photographs that I took on the sunny and breezy final day of June, 2019 along Buffalo’s shoreline.

But, first, I must split a hair.

My environmental allies, the fishing public, the media, State officials, the Erie Canal Harbor Development Corporation (ECHDC), and virtually every knowledgeable and sensible WNY’er that I’ve encountered, would agree that the pictures that follow were snapped on my trek around the southern portion of Buffalo’s Outer Harbor.

However, the City of Buffalo’s Common Council, at the recommendation of Mayor Byron Brown’s Office of Strategic Planning, excluded from the definition of the “Outer Harbor” contained in the “Green Code” [officially, Uniform Development Ordinance] everything south of the former Ford complex (Terminal A and Terminal B). In doing so, our esteemed legislators have excluded, from the protections of criteria intended to protect the Outer Harbor from inappropriate future development, the following: the former Freezer-Queen parcel (where Gerry Buchheit may or may not still wish to construct a 23-story glass-and-steel tower), the Small Boat Harbor, Buffalo Harbor State Park, Gallagher Beach, the Tifft Street Pier, etc. [Note: Here’s how the city in its proposed LWRP, the ECHDC, and State DEC, interpreted the boundaries of the Outer Harbor prior to Mr. Buchheit’s proposed Queen City Landing tower at the former Freezer-Queen site: Outer Harbor defined by LWRP-ECHDC-DEC.]

In other words, the enlightened world will think of the following photos as images of Our Outer Harbor. I hope you’ll enjoy them:

And, here are my favorite images for what you will not see – the proposed 23-story tower!

With All Due Respect,

Art Giacalone

P.S. Please contact Buffalo’s Common Council Members (especially South District Councilman Christopher Scanlon), as well as the Mayor’s office, and insist that the Green Code be amended immediately to include ALL of the Outer Harbor in the “Outer Harbor boundaries” as defined at Section 5.3.3C(1)(a) of the Uniform Development Ordinance. Thank you.

Silo City has become an integral and inspirational part of Buffalo’s arts and recreation scene. Major theatrical events, music festivals, poetry readings, historic land and water tours, kayaking, etc., entice the public to the banks of the Buffalo River.

As The Public’s Aaron Lowinger proclaimed last month, “Perhaps no cultural revelation in Buffalo these past 10 years is more important to the city’s past and future … than the reintroduction of the vast array of grain silos at Silo City into Buffalo’s civic life.” Likewise, the Buffalo News has described the Silo City experience as “transformative, for the viewer, participants and the city they love.”

Silo City, in its current glory, would not exist if Buffalo City Hall – including the City Planning Board, Zoning Board of Appeals, Common Council (with the exception on then-Council President David Franczyk), and Mayor Byron Brown – had their way a decade ago. And, most likely, Western New Yorkers would not have been enjoying the “Music is Art” festival this past weekend at the Buffalo RiverWorks complex, around the bend of the Buffalo River from Silo City.

Rather, an imposing 18-acre ethanol-producing plant would be covering the Silo City site, consuming a million gallons of water per day, discharging 300,000 gallons of wastewater to the Buffalo Sewer Authority daily, and impacting the surrounding community with its odor, noise, and river and rail traffic.

But, alas, the ethanol plant was never built, a victim of market forces. The brains behind the project – RiverWright Energy’s Rick Smith III and Greg Stevens – pulled the plug on the facility despite having obtained all the necessary zoning approvals from City Hall and a permit from the NYS Department of Environmental Conservation to construct and operate the plant. As Buffalo News reporter David Robinson wrote in an October 2011 article, “All of a sudden, making ethanol went from being a highly profitable business to one that, at best, was earning only a few nickels on the gallon or, at worst, was losing money.”

Ironically, Rick Smith, a motivating force behind both the late ethanol plant proposal and Silo City, seemingly failed to appreciate the cultural and recreational value of the historic silos. The environmental assessment forms submitted on his behalf in late 2006 insisted that the ethanol-production facility would not adversely affect aesthetic resources important to the community, or existing or future recreational opportunities.

It’s my prediction (and, yes, hope) that a comparable fate awaits Queen City Landing’s 23-story, glass-and-steel mixed-use tower proposed for the former Freezer Queen parcel on Buffalo’s Outer Harbor. That is, that markets forces will compel the project sponsors to abandon the project, allowing the site and nearby waterfront resources – including the Small Boat Harbor, Greenway trail, Tifft Nature Preserve, etc. – to thrive.

I have long believed that there isn’t a strong enough demand for luxury apartments to support a 200-unit structure at the former Freezer Queen site. Not only are there few nearby amenities to satisfy up-scale residents, Lake Erie’s winds and prolific snow make the site less-than-attractive for a substantial period of each year.

There are noteworthy parallels between the proposed ethanol plant and 200-unit apartment tower. In both cases:

– When submitting their proposals to City Hall, the project sponsors appeared more focused on potential profits (and, perhaps, their own egos), than realistic market forces.

– The city’s Planning Board turned its collective eye away from obvious environmental issues, and issued a “Negative Declaration” rather than requiring the developer to prepare an Environmental Impact Statement.

– A handful of concerned city residents had the courage to challenge the proposed project at public hearings and in the courts. [Full disclosure: I represented three Old First Ward residents in opposing the proposed ethanol plant, as well as four Outer Harbor activists in fighting the 23-story tower project.]

Obviously, I have no way of knowing what the principals at Queen City Landing, LLC are thinking. And, you can bet, they wouldn’t publicly admit it if they were abandoning the project. But, if visuals are any indication, the sponsors of the QCL mixed-use development may have already moved on from their towering dream. Queen City Landing’s official site has not changed (in any apparent way) for years, and the only advertisement at the site for the proposed project is a soiled banner obscured behind weeds and a chain link fence.

It’s a 15- or 20-minute bike ride from my South Buffalo home to Buffalo’s Outer Harbor. On August 31st, I pedaled there after my usual Friday evening dinner – tuna fish sandwich and broccoli – arriving at the Outer Harbor’s south end around 6:30 PM. The quality of the sunlight was so splendid that I decided to do something I had never done before – I used my recently acquired smart phone to take a series of photos, starting at the Tifft Street Pier, and ending at one of my favorite places, Wilkeson Pointe.

It was a perfect evening for experiencing the Outer Harbor – no major event overwhelming nature with crowds, vehicles, and noise.

I have immense admiration for Buffalo environmentalists and Outer Harbor advocates Margaret Wooster, Jay Burney and James E. Carr. They have decided to continue their effort to utilize the zoning and judicial processes to stop Queen City Landing, LLC’s plan to construct a 23-story tower complex at the former Freezer Queen site.

But I will no longer be their legal representative. After decades of public hearings and court proceedings – where I have attempted, with mixed results, to convince public officials to faithfully comply with the letter and spirit of New York’s development and environmental laws – I have decided to take a break from the solo practice of law. [Please note, I am not ready to call it retirement.]

On April 12, a “notice of appeal” was filed on behalf of Margaret, Jay and Jim in the Erie County Clerk’s office. It expresses their intention to appeal the March 12, 2018 dismissal of their lawsuit – by the Hon. Catherine Nugent Panepinto – to the Appellate Division, Fourth Department, the state’s intermediate appellate court in Rochester.

As addressed in detail in prior posts here [for example], the mixed-use development proposed by Queen City Landing (QCL) is located in the heart of Buffalos Outer Harbor, adjacent or within walking distance to marinas and significant wildlife habitats (including the Small Boat Harbor, Times Beach and Tifft Nature Preserves), popular fishing spots, and public parks and walkways, such as the Greenway Nature Trail, Gallagher Beach and Wilkeson Pointe. The site (referred to as “Subject Parcel” in the image below) lies in a 100-year floodplain along Lake Erie’s ecologically fragile coastline.

I join in the belief held by my “former clients” that the setting chosen by developer Gerald Buchheit and his partners at R & P Oak Hill for a 23-story, glass-and-steel tower is unique, environmentally vulnerable, and utterly inappropriate for a massive residential/mixed-use development. Not only does the site lie in a floodplain and along a globally significant migratory bird flyway, there are hidden concerns. QCL’s geotechnical engineers have determined that the project’s “heavy foundation loads” – a 305-foot tower and large parking ramp – would be perched on “soft to very soft clays” with “very marginal (weight) bearing capacity” that extend to bedrock 70 to 75 feet below the existing ground level. [Note: QCL chose not to make public its consultant’s May 2016 “Geotechnical Evaluation Report” until after the project had received its approvals – without preparation of an Environmental Impact Statement – from the city Planning Board and Common Council.]

And the nature of the subsurface soils is not the only source of potential environmental and “constructability” issues at the former Freezer Queen site. QCL’s engineering consultants proved prescient when making the following observation in their geotechnical evaluation report: “Lake Erie is also prone to a seiche effect from a strong sustained wind event out of the southwest. During these events the water levels in the northeastern end of the lake can rise several feet.” As aptly described and caught on videotape by Jay Burney on April 4, 2018, a historically-moderate seiche occurred along the Outer Harbor, elevating water levels an estimated 5 to 8 feet, and inundating a substantial portion of the proposed tower site.

[Above photo, showing seiche’s impact on QCL site on April 4, 2018, courtesy of Jay Burney.]

I’d be curious to see an objective market-feasibility study for QCL’s proposed 200-unit residential tower. No matter what Mr. Buchheit and his agents suggest at public hearings, I find it hard to imagine a strong interest in luxury apartments at a site that, for much of the year, is frozen, wind-slept, threatened by floods, and far from most urban amenities. Those desiring a residence that is simultaneously close to the Lake Erie shore and high above the mere mortals below might be better off patiently waiting for a condominium or apartment located downtown in Buffalo’s tallest building, One Seneca Tower.

With All Due Respect,

Art Giacalone

P.S. Inquiries concerning the appeal should be addressed to Margaret Wooster at (716) 833-5892 or by email atmiwooster@gmail.com.

[Full disclosure: I represent four City of Buffalo residents and environmental activists who are challenging the City of Buffalo Planning Board’s approvals for the 23-story tower Queen City Landing project at the former Freezer Queen site on the Outer Harbor. The geotechnical report referred to in this post is part of the City’s “Certified Record” in the pending lawsuit in State Supreme Court, Erie County.]

The Erie Canal Harbor Development Corporation (ECHDC) recently spent a chunk of the public’s money for an “Existing Conditions Assessment” of several of the agency’s Outer Harbor properties. (Here’s the August 2016 Executive Summary.) A significant portion of the assessment focuses on the 50-acre “Terminal Complex” (that is, Ford’s Terminals “A” & “B”) at 901 Fuhrmann Blvd.

The Terminal Complex is located immediately north of, and adjacent to, the 20-acre Queen City Landing LLC (QCL) parcel – the former Freezer Queen site – at 975-1005 Fuhrmann.

The recently released Executive Summary discusses surveys and sampling of asbestos, hazardous materials, lead, and mold, as well as structural assessments of buildings, structures and slip walls. What is not mentioned is subsurface conditions. That omission is troubling given the content of the belatedly-revealed May 2016 Geotechnical Report prepared for the proposed Queen City Landing project by Empire Geo-Services, Inc., of Hamburg, NY.

The May 2016 report provides a detailed characterization of the soil, bedrock and groundwater conditions present at the former Freezer Queen site. The following facts and conclusions regarding the Queen City Landing site caught the eye of this non-engineer:

(a) The QCL site, which was originally part of Lake Erie, was reclaimed to the current site grades with various man-placed fill extending to depths ranging between 10 feet and 19 feet. The fill is contained within the existing marine bulkheads. The fill appears to have been placed in a generally random and uncontrolled manner, and was generally “not densified” in a controlled manner at the time of its placement. [501-503]

(b) “Medium to very soft and loose to very loose indigenous soils” were encountered below the existing man-placed uncontrolled fill, and were found to extend to at or near the top of bedrock. Bedrock was encountered in test borings at depths ranging between about 70.0 feet and 75.8 feet below the existing ground surface. [507] The medium-to-very-soft consistency clays were first encountered at a depth around 25 feet, and are “under-consolidated.” [502-504]

(c) The existing fill and underlying soft clay soils have “very marginal bearing capacity support” and would be “susceptible to excessive total and differential settlement” of a conventional spread or mat type foundation system, and are not considered suitable for the use of spread or mat type foundations to support the proposed 23-story building and parking ramp structures. [507]

(d) Due to the extensive amount of existing fill and the known soft soil deposits present in the area of the site, along with the anticipated heavy foundation loads, both the building and parking ramp structures are expected to be supported on a deep, driven pile foundation system bearing on the Limestone bedrock at depths ranging between about 70.0 feet and 75.8 feet below the existing ground surface. [507-508, 498]

(e) The expected settlement within the existing fill and indigenous soils, particularly the soft to very soft soils, due to the site filling, will need to be taken into account when sizing the selected piles for the foundation system. [510]

(f) The raising of site grades as much as 7 feet within the building and parking ramp areas, to establish at-grade level finished floor elevation of 583.0 feet, is expected to result inexcessive post-construction settlement beneath the additional fill, potentially resulting in approximately 4-inches + of long term consolidation settlement. Due to the thickness of this highly compressible stratum, it is estimated that a period of around 3 to 7 years would be required for approximately 75% of the consolidation settlement to occur. [507-508]

(g) Freestanding water was observed in the test borings at depths ranging from 5 feet to 14 feet, corresponding to elevations ranging between 575.0 feet to 562.4 feet. It is possible that some perched or trapped groundwater could also be present in the upper more permeable fill soils, which overlie less permeable fill soils.

(h) Lake Erie is prone to a seiche effect (that is, an oscillation of the surface of the lake) from a strong sustained wind event out of the southwest, during which the northeastern end of the lake can rise several feet. These fluctuations can also occur in the groundwater levels along the adjacent shoreline. [505-506]

(i) Based on the subsurface conditions encountered in the test borings – that is, soft to very soft clays – the proposed Queen City Landing apartment/mixed-use building and parking ramp development site should be classified as Seismic Site Class “E” in accordance with the Building Code of New York State. [515, 504] [Note: Soft soils with slower shear-wave velocities generally produce greater amplifications of ground shaking than stiff soils with faster shear-wave velocities.]

The QCL partners, Gerald A. Buchheit, Jr., and RP Oak Hill Building Company Inc., did not make the geotechnical report available to the City of Buffalo Planning Board or the public prior to city’s decisions on May 31, 2016 to skip a SEQRA environmental impact statement for the 23-story tower project, and to approve the proposed 23-story mixed-use development without any conditions or mitigation measures.

QCL also neglected to submit its geotechnical report to the Planning Board in November 2016 when it applied to move the building 25 feet to the north due to (in the words of its lawyer) “constructability” issues.

Given that history, I presume that QCL has not sent the geotechnical report to the officials at ECHDC (with potentially troubling findings underlined and highlighted in yellow). After all, Buffalo Business First reporter Jim Fink wrote in a February 2016 article that Queen City Landing’s Gerry Buchheit has “expressed interest in the Port Terminal complex for a separate but related development to Queen City Landing.” Additionally, a September 2015 vision for a development called “TERMINAL PLACE at Queen City Landing” – attributed to the NFTA – expressed a plan to “coordinate simultaneous development with the neighboring Freezer Queen parcel creating a critical mass to revive the waterfront.”

[Note: It may merely be a coincidence, but the executive summary for the ECHDC’s “Existing Conditions Assessment” contains the following observation – at page 11 of 12 – “There is a section along the west side of the wall near the southwest corner showing more significant cracking and loss of fill material from behind the wall, which has led to a corresponding sinkhole in the parking lot at that location.”]

The ECHDC and the public need to know – sooner rather than later – whether the soils on the parcel adjoining the Queen City Landing site is comparable to the subsurface conditions described in the geotechnical report. It is our job to make certain that the ECHDC doesn’t bury its collective head in these very soft and very loose soils in an attempt to avoid this significant environmental issue.

The July 24, 2017 print version of the Buffalo Law Journal published my column – titled “Uneven playing field for developers and residents” – where I provide a brief overview of the obstacles faced by residents when developers seek to circumvent zoning and environmental laws, and then discuss three recent examples: the so-called “doughnut hole” approach to rezoning, the “second bite of the apple” phenomenon, and a developer’s failure to timely share information.

For a lengthier discussion of the obstacles faced by residents when battling developers, here’s a piece I prepared a decade ago as part of a Continued Legal Education seminar: Zoning Challenges-Overcoming Obstacles June 2007. [Note: Things have, in my humble opinion, gotten worse, not better, for residents during the past ten years.]

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